Rokovada v R

Cases Cited: Abbas Hijazi v Director of Public Prosecutions [2022] NSWSC 1218
Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
Borri v R [2023] NSWCCA 166
Camilleri v R [2023] NSWCCA 106; (2023) 308 A Crim R 52
Carly Anne Coles v Director of Public Prosecutions [2022] NSWSC 960
Green v R [2022] NSWCCA 230
Ke v R [2021] NSWCCA 177
R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535
R v Honeysett (No 2) (Sentence) [2023] NSWSC 103
R v Rifai [2022] NSWDC 74
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Tuxford v Director of Public Prosecutions [2023] NSWSC 1300

Texts Cited: Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017 (NSW)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017

Category: Principal judgment

Parties: Sairusi Rokovada (Applicant)
Rex (Respondent)

Representation: Counsel:
I McLachlan (Applicant)
A Isaacs (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/85899

Publication restriction: Publication of names and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A

HEADNOTE

[This headnote is not to be read as part of the judgment]

Sairusi Rokovada (the applicant) was arrested on 15 March 2023 and charged with several sexual offences arising from a single incident in March 2022.

On 13 November 2023, the Crown made an initial plea offer. On 22 February 2024, the applicant made a counter offer to plead guilty to one count of sexual intercourse without consent on a specified factual basis that the complainant consented to all sexual activity except the act of ejaculation. The Crown rejected this offer on 13 March 2024. However, at a “Super Call-over” on 25 July 2024, the Crown agreed to resolve the matter on a basis that was materially identical to the applicant’s earlier counter offer.

On 21 October 2024, Hanley SC DCJ sentenced the applicant to a term of imprisonment of 2 years and 6 months, with a non-parole period of 1 year and 3 months. The sentence incorporated a 10% discount for the applicant’s plea of guilty.

The applicant sought leave to appeal against his sentence on the sole ground that the sentencing judge erred in applying only a 10% discount under s 25D(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), rather than the 25% discount that he submitted was appropriate. The applicant argued that the refusal to apply the higher discount was manifestly unfair, as the Crown ultimately achieved no better outcome than if it had accepted the applicant’s earlier offer.

The Court held (Adamson JA, Hamill J agreeing with additional remarks and Ierace J agreeing with additional remarks) granting leave to appeal but dismissing the appeal:

(1) The applicant’s case conference certificate was insufficient to satisfy the requirements of s 25D(2)(a).

(2) The applicant did not fall within the express terms of s 25D(2)(a), but instead satisfied s 25D(2)(b)(ii), as he pleaded guilty after being committed for trial: at [37] (Adamson JA).

(3) Section 25D(2)(a) applies only where a plea of guilty has been made before and accepted by a Magistrate during committal proceedings.

(4) Furthermore, the applicant did not meet the requirements of s 25E as he did not plead guilty to a different offence other than that which he was charged, or s 25D(3) because there was no new count offence: at [39] and [41] (Adamson JA).

Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17; Green v R [2022] NSWCCA 230 considered and applied.

(5) Observations made as to the operation, inflexibility and potential unfairness of the statutory regime and the desirability of review and possible reform: [52]-[54], [61] (Hamill J); [65]-[69] (Ierace J).

Ke v R [2021] NSWCCA 177, Green v R [2022] NSWCCA 230; Camilleri v R [2023] NSWCCA 106; (2023) 308 A Crim R 52 considered.

JUDGMENT

1. ADAMSON JA: Sairusi Rokovada (the applicant) seeks leave to appeal against the sentence imposed on him by Hanley SC DCJ (the sentencing judge) on 21 October 2024 for a single count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The applicant was sentenced to a term of imprisonment for 2 years and 6 months commencing on 7 May 2024 and expiring on 6 November 2026, with a non-parole period of 1 year and 3 months, expiring on 6 August 2025. The sentence imposed reflected a discount of 10% for the applicant’s plea of guilty.

2. The sole proposed ground of appeal alleges that the sentencing judge erred in the application of s 25D(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) in applying a 10% reduction for the plea of guilty pursuant to s 25D(2)(b), when his Honour ought to have applied a reduction of 25% pursuant to s 25D(2)(a). It was common ground that, if leave were granted and the appeal allowed, the applicant should be resentenced on the basis that the only adjustment required was to alter the discount from 10% to 25%. Were the Court to take that course, it was common ground that the sentence would be adjusted to a term of imprisonment of 2 years and 1 month commencing on 7 May 2024 and expiring on 6 June 2026, with a non-parole period of 1 year expiring on 6 June 2025.

3. Unless otherwise indicated, all references to legislation in these reasons are references to the Act.

The relevant factual background

4. The alleged offending occurred in March 2022. On 15 March 2023, the applicant was arrested and charged by way of court attendance notice (CAN) with the following offences, each of which was alleged to have been committed as part of a single incident:

| Sequence | Offence / section of Crimes Act / maximum penalty | | 1 | sexual touching of another person without their consent contrary to s 61KC(a) of the Crimes Act / 5 years’ imprisonment. | | 2 | | 3 | sexual intercourse without consent contrary to s 61I of the Crimes Act / 14 years’ imprisonment; 7 year standard non-parole period. | | 4 | | 5 |

5. On 13 November 2023, in the course of a case conference, the Crown offered to accept pleas of guilty to sequences 1 and 3 and, upon such pleas being entered, to withdraw sequence 5, with sequences 2 and 4 to be taken into account on a Form 1 pursuant to s 33 of the Act.

6. On 22 February 2024, the applicant made a counter offer to plead guilty to a single offence of sexual intercourse without consent contrary to s 61I of the Crimes Act on the basis that all other charges would be withdrawn and that the Crown would agree, for the purposes of sentencing, that the complainant consented to all sexual activity other than the applicant ejaculating.

7. On 13 March 2024, the Crown rejected the applicant’s counter offer and responded with an offer to accept a plea of guilty to sequence 3 in full satisfaction of the remaining charges on the basis that the agreed facts stated that the victim did not consent to the sexual intercourse in its entirety. The applicant rejected this offer on 19 March 2024.

8. On 21 March 2024, the applicant was committed for trial on sequences 2-5. However, it was determined that sequence 1 would remain in the Local Court for summary disposition.

9. The proceedings in respect of sequences 2-5, which became counts 1-4 on the indictment, were listed for arraignment in the District Court at Parramatta on 12 April 2024. The trial was listed to commence on 5 May 2025.

10. On 25 July 2024, the proceedings were re-listed as part of a “Super Call-over” at the District Court at Parramatta. They were resolved on the following basis:

11. the applicant entered a plea of guilty to count 2 on the indictment (which had been sequence 3 in the CAN);

12. the remaining sequences (charged as counts 1, 3 and 4 on the indictment) were withdrawn and dismissed; and

13. the agreed facts included that the complainant consented to all sexual activity other than the applicant ejaculating.

14. Thus, the effect of the resolution was the same as had the Crown accepted the offer which was made by the applicant in the Local Court on 22 February 2024. In the District Court, it was common ground that the applicable discount mandated by the Act was 10%. His Honour expressly took into account the applicant’s offer to plead guilty in the Local Court (which was not accepted at the time) as some evidence of remorse. His Honour also took into account the applicant’s entry of the plea during the Super Call-over as advancing the interests of justice and therefore to be taken into account as a mitigating factor.

15. In this Court, the applicant submitted that the sentencing judge was in error in failing to discount the sentence by 25%. Mr McLachlan, who appeared on his behalf, submitted that, if the discount of 25% were not allowed, this would be manifestly unfair to the applicant since the Crown achieved no better result at the Super Call-over than it would have achieved, had it accepted the applicant’s offer in the Local Court.

16. The determination of this issue requires this Court to consider the wording of the Act in light of the legislative framework, history, purpose and context.

The legislative framework

Criminal Procedure Act 1986 (NSW)

14. Where the Crown proposes to proceed by way of indictment, other than where the Director of Public Prosecutions files an ex officio indictment, it is necessary for an accused person to be committed for trial. Relevantly, s 55 of the Criminal Procedure Act 1986 (NSW) provides for the following steps to be taken to enable this to occur:

15. the issuing and filing of a CAN;

16. the service of a brief of evidence by the prosecutor;

17. the filing of a charge certificate which sets out the offences to be proceeded with;

18. the holding of a case conference;

19. the filing of a case conference certificate; and

20. the committal of the accused person for trial or sentence on each charge.

21. Section 66 of the Criminal Procedure Act provides in part:

66 Charge certificates

(1) A charge certificate is a document in the form prescribed by the regulations and signed by the prosecutor that—

(a) relates to the offences specified in a court attendance notice for the committal proceedings, and

(b) specifies the offences that are to be the subject of the proceedings against the accused person, and

(c) sets out the details of each of those offences in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment, and

(d) specifies any back up or related offences (within the meaning of section 165) that are proposed to be the subject of a certificate under section 166 (1) relating to charges against the accused person, and

(e) if applicable, confirms that proceedings against the accused person for other specified offences are no longer being proceeded with, and

(f) contains any other matters prescribed by the regulations for the purposes of this section.

16. Section 70(4) of the Criminal Procedure Act provides that the case conference is to be held after the filing of the charge certificate by the prosecutor. Section 70(2) provides that “[t]he principal objective of the case conference is to determine whether there are any offences to which the accused person is willing to plead guilty.” Section 70(3) provides that a case conference may also be used to achieve the objective of facilitating provision of material or information to enable the accused to determine whether to plead guilty to one or more offences; and to facilitate the resolution of other issues, including identifying any agreed facts.

17. Section 75(1) of the Criminal Procedure Act sets out the matters to be included in a case conference certificate as follows:

75 Contents of case conference certificate

(1) The case conference certificate is to be in the form prescribed by the regulations and is to certify as to the following matters—

(a) the offence or offences with which the accused person had been charged before the case conference and which the prosecution had specified in the charge certificate as offences that will be proceeding or are the subject of a certificate under section 166,

(b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences,

(c) any offers by the prosecution to the accused person to accept guilty pleas to an offence specified in the charge certificate or to different offences,

(d) whether the accused person or prosecution has accepted or rejected any such offers,

(e) the offence or offences for which the prosecution will seek committal for trial or sentence,

(f) any back up or related offence or offences (within the meaning of section 165) that are proposed to be the subject of a certificate under section 166(1) relating to charges against the accused person,

(g) if an offer made to or by the accused person to plead guilty to an offence has been accepted—details of the agreed facts on the basis of which the accused person is pleading guilty and details of the facts (if any) in dispute,

(h) any offences with which the accused person has been charged to which the accused person has offered to plead guilty and agreed to ask the court to take into account under section 33 of the Crimes (Sentencing Procedure) Act 1999,

(i) whether or not the prosecutor has notified the accused person of an intention to make a submission to the sentencing court that the discount for a guilty plea should not apply or should be reduced in relation to a particular offence with which the accused person is charged,

(j) any other matters prescribed by the regulations for the purposes of this section.

(Emphasis added to indicate the subparagraphs on which the applicant relied.)

18. Where further offers are made in a particular form and filed after the filing of a case conference certificate but before the accused is committed for trial or sentence, a plea offer is to be treated as if it formed part of the case conference certificate and is to be annexed to the certificate in the committal proceedings: s 77 of the Criminal Procedure Act.

19. Section 97 of the Criminal Procedure Act provides for the circumstance where an accused pleads guilty to an offence during the committal stage of proceedings as follows:

97 Guilty pleas and committal for sentence

(1) An accused person may at any time in committal proceedings plead guilty to an offence.

(2) The Magistrate may accept or reject a guilty plea.

(3) The Magistrate must not accept a guilty plea before the time at which an accused person may be committed for sentence under section 95.

(4) Rejection of a guilty plea does not prevent an accused person from pleading guilty at a later stage in the committal proceedings.

(5) If the guilty plea is rejected by the Magistrate, the committal proceedings continue as if the accused person had not pleaded guilty.

(6) If the guilty plea is accepted, the Magistrate must commit the accused person to the District Court or the Supreme Court for sentence.

The Act

The legislative history

Prior to 30 April 2018

20. Prior to 30 April 2018, s 22 of the Act conferred a broad discretion on sentencing judges to discount a sentence for the utilitarian value of a plea of guilty. It applied to all NSW offences, whether summary or indictable. Section 22, prior to 30 April 2018, provided in part:

22 Guilty plea to be taken into account

(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:

(a) the fact that the offender has pleaded guilty, and

(b) when the offender pleaded guilty or indicated an intention to plead guilty, and

(c) the circumstances in which the offender indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.

(Emphasis added.)

21. The time at which a plea was entered or offered had a significant bearing on its utilitarian value and therefore, generally, earlier pleas attracted a greater discount, subject to the rider in s 22(1)(1A) that the lesser penalty (the discounted penalty) “must not be unreasonably disproportionate to the nature and circumstances of the offence.” In R v Thomson*; R v* Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, a guideline judgment, set out guidelines which applied when imposing a sentence where a plea of guilty is entered in respect of offence against NSW laws. The guidelines included, of present relevance, at [160]:

The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

The insertion of Division 1A into Part 3 of the Act

22. In 2017, the then Government introduced the Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017 (NSW) which, when enacted, had the effect of confining s 22 to sentences imposed in the Local Court. In respect of offences dealt with on indictment, it replaced the previous broad judicial discretion with mandatory discounts which apply only if certain specified conditions were met.

23. In the Second Reading Speech which introduced the Bill in the Legislative Assembly the Honourable Mark Speakman SC MP, Attorney General, said (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017) at 278:

[T]he bill prescribes sentencing discounts given for the utilitarian value of guilty pleas by introducing a statutory sentence discount scheme. This will provide certainty and ensure that large discounts cannot be granted for guilty pleas that are made late in the process.

24. The Attorney General explained the effect of the proposed amendments to the Act as follows at 281:

Schedule 2 to the bill outlines amendments to the Crimes (Sentencing Procedure) Act to introduce a strict fixed sentencing discount scheme. It replaces the existing common law sentence discount for the utilitarian value of a guilty plea. Currently, large discounts of up to 25 per cent may be given for guilty pleas, which may be as late as on the first day of trial. Tightening the discount scheme as proposed will prevent these large discounts from being granted late in the process. Instead, fixed discounts will apply depending on the timing of the guilty plea: first, a 25 per cent discount if the guilty plea is entered while the case is in the Local Court, before the case is committed to the higher courts; secondly, a 10 per cent discount where the guilty plea is entered after the case has been committed to the higher court but at least 14 days before the first day of the trial, or the accused gives notice to the prosecutor of his or her intention to plead guilty at least 14 days before the first day of the trial and enters the plea at the first available opportunity; and thirdly, a 5 per cent discount if the guilty plea is entered in any other circumstances.

These discounts are fixed, meaning that where they apply, the full discount must be given. This certainty about the discount that will apply is fundamental to creating a strong incentive for early guilty pleas. This strong incentive is reinforced by a substantial discount for a guilty plea in the Local Court and significantly lower discounts for guilty pleas after committal. The offender is required plead guilty or give notice to the prosecutor offering to plead guilty, 14 days before the first day of trial to receive a 10 per cent discount. This is to give the prosecution sufficient time to call off its preparation for trial and advise victims and witnesses that they need not appear.

(Emphasis added.)

25. The Bill was passed and became the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW). It had effect from 30 April 2018.

The relevant provisions

26. Part 3 of the Act, entitled “Sentencing procedures generally”, makes provision for discounts for guilty pleas. Division 1A is “Sentencing discounts for guilty pleas to indictable offences”. The effect of Division 1A was to remove the broad judicial discretion to apply a discount for a plea of guilty which had previously been conferred by s 22 of the Act: Ke v R [2021] NSWCCA 177 at [318] (Bellew J, Brereton JA and myself agreeing) and replace it with a detailed and comprehensive code which prescribed the conditions to be met before a stipulated discount could be applied. Section 25A(2) relevantly prohibits a court from applying any other discount for the utilitarian value of a guilty plea other than the discount provided for by Division 1A.

27. The provisions which are raised by, or are relevant to, the issue in the present appeal are as follows:

25D Sentencing discounts for guilty plea for offences dealt with on indictment

(1) Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.

(2) Amounts of sentencing discounts The discount for a guilty plea by an offender … is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender—

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

(3) Discount variations—new count offences The discount for a guilty plea by an offender in respect of a new count offence is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,

(a1) a reduction of 25% in any sentence that would otherwise have been imposed, if—

(i) the offender was discharged under section 68(2)(a) of the Criminal Procedure Act 1986, and

(ii) an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) or (a1) does not apply and the offender—

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a), (a1) or (b) does not apply.

28. A “new count offence” is defined by s 25B to mean:

(a) an offence the subject of an ex officio indictment, or

(b) an offence for which the count is inserted in an indictment by amending the indictment (the original indictment).

29. Section 25E makes provision for a discount which applies where there is a plea of guilty to a “different offence”, as follows:

25E Sentencing discounts to apply in certain cases where guilty plea offer made for different offences and refused when made

(1) Discount where offer not accepted In determining the sentence for an offence, the court is to apply a sentencing discount in accordance with this section if—

(a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and

(b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and

(c) the offer was not accepted by the prosecutor, and

(d) the offer was not subsequently withdrawn, and

(e) the offender was found guilty of the different offence or an offence that is reasonably equivalent to the different offence.

For the purposes of this subsection, an offence is reasonably equivalent to a different offence if—

(a) the facts of the offence are capable of constituting the different offence, and

(b) the maximum penalty for the offence is the same or less than the different offence.

(2) Discount where offer later accepted In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if—

(a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and

(b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and

(c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and

(d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender.

(3) Discount variation—offer to plead guilty to different offence The discount to be applied by the court is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offer was made before the offender was committed for trial,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offer was made after the offender was committed for trial and at least 14 days before the first day of the trial of the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if the offer was made less than 14 days before or on or after the first day of the trial of the offender.

30. Section 25F(4) of the Act entitles a sentencing judge to reduce the sentencing discount where a dispute as to the facts has eroded the utilitarian value of the discount.

31. Section 25F(5) of the Act provides that an offender bears the onus of establishing, on the balance of probabilities, that the offender is entitled to a discount under these provisions.

Consideration

32. Mr McLachlan contended that filing a case conference certificate in the Local Court which records the applicant’s conditional offer to plead to an offence, should be sufficient to establish under s 25D(2)(a) that a plea offer was made and “accepted” by the Magistrate because the offer to plead which was ultimately accepted by the Crown was in the same terms (as to the offence and the agreed fact that the lack of consent was limited to the applicant ejaculating) as the offer made on 22 February 2024*.* Mr McLachlan submitted that it was unfair for the applicant not to have been rewarded by making an offer, which was rejected by the Crown prior to his committal for trial, but later accepted at a time when the maximum discount of 25% was no longer available to him under the Act. He submitted that this consequence cannot have been intended by the legislature because of its “patent injustice”.

33. Further, Mr McLachlan submitted that this consequence was at odds with the purpose of Division 1A of Part 3 of the Act, which was to encourage early pleas of guilty. He also relied on Hamill J’s observation in Green v R [2022] NSWCCA 230 at [23] (Macfarlan JA and Harrison J agreeing) that “[t]he power of a Magistrate to “accept” a plea, and the nature and content of the jurisdiction then being exercised, is yet to be the subject of conclusive judicial consideration.” He submitted that, in the particular circumstances of the present case, it was open to this Court to apply a 25% discount, notwithstanding that the circumstances did not fall within the “literal” words of s 25D(2)(a).

34. Mr McLachlan attempted to draw an analogy between the present situation and Ke v R where this Court held that an offer to plead guilty which was made in the case conference but, in error, not recorded on the case conference certificate warranted the maximum discount of 25%: [338]-[342]. He submitted, in effect, that this Court ought infer that the Crown ought to have accepted the applicant’s offer made on 22 February 2024 since it ultimately resolved the proceedings on terms which were identical to that offer and that this Court ought treat the offer as having been accepted prior to committal.

35. In answer to the Crown’s submission that the applicant could have chosen to plead guilty to an offence contrary to s 61I of the Crimes Act in the Local Court (rather than simply offer to do so) Mr McLachlan submitted that this course would have been potentially problematic for the applicant because it would have led to the applicant being committed for sentence and a disputed facts hearing on the question whether the complainant consented to everything except ejaculation. He submitted that no “responsible competent practitioner” would expose a client to that process because it might lead to “some or all of [the] discount” being lost under s 25F(4) of the Act (which entitles a sentencing judge to reduce the sentencing discount where a dispute as to the facts has eroded the utilitarian value of the discount).

36. The correct approach to statutory construction was articulated by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst at the same time regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

37. The applicant falls squarely within the express words of s 25D(2)(b)(ii) of the Act since he pleaded guilty after having been committed for trial. He does not fall within s 25E as he did not plead guilty to a different offence other than that with which he was charged and does not fall within s 25D(3) because there was no “new count offence” (since each of the counts on the indictment corresponded to sequences in the CAN). The construction for which Mr McLachlan contended is at odds with the plain meaning of the express words of s 25D. Section 25D(2)(a) applies only to a plea of guilty which has been made before, and accepted by, a Magistrate in committal proceedings. As this Court confirmed in Green v R at [47]-[48], the quantum of the sentencing discount in Division 1A “turns on the actual timing of the plea or the actual compliance with the pre-trial notice requirements” (emphasis added).

38. It was open to the applicant to plead guilty pursuant to s 97(1) of the Criminal Procedure Act, before he was committed for trial, to one of the two charges of sexual intercourse without consent contrary to s 61I of the Crimes Act. He chose not to do so, with the consequence that he forewent the entitlement to the discounted rate to which he would have been entitled under s 25D(2)(a) of the Act. It is not to the point that there were practical forensic reasons, arising from s 25F(4) of the Act, why the applicant might have been wary of entering a plea and engaging in a disputed facts hearing on the ambit of the complainant’s lack of consent. In these circumstances, there is no analogy with Ke v R, which turned on a clerical failure to record in the case conference certificate an offer to plead guilty to a different offence which had actually been made and, having been made at the case conference, entitled the offender to a discount of 25% pursuant to s 25E of the Act.

39. Nor does the context support the construction for which Mr McLachlan contended. Section 25D(2)(a) concerns a plea of guilty which has been accepted by a Magistrate. By contrast, s 25D(3) and s 25E, which concern new count offences and different offences respectively, refer to an offer to plead guilty which has been recorded in a negotiations document. The determination of the extent of the discount based on offers to plead guilty reflects the circumstance that neither a new count offence nor a different offence is before the court at the time the offer is made and therefore the offender does not have the option of entering a plea of guilty to such an offence.

40. Manslaughter is a paradigm example of the application of s 25E. An accused who is charged with murder may offer to plead guilty to manslaughter but cannot enter a plea of guilty to that offence because it is not an offence with which the accused has been charged. The Crown may decide to accept an accused’s offer to plead guilty to manslaughter in full satisfaction of the charge of murder but this requires the Crown’s concurrence and cannot be done as an independent act by the accused. Thus, in circumstances where the accused offers to plead guilty to an offence with which the accused has not been charged, Parliament has made provision for the offer, in some instances, to result in the reward of a discount, as provided for in s 25D(3) and s 25E of the Act: see, for example, Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17, which concerned s 25E, at [14], [38] and [41] (Simpson AJA, Ierace and Dhanji JJ agreeing).

41. In the present case, the applicant offered to plead guilty to an offence with which he had been charged. Thus he fell outside s 25D(2)(a) because he did not enter a plea prior to being committed and fell outside s 25D(3) and s 25E because the offence to which he offered to plead guilty was one with which he had been charged.

42. Mr McLachlan, in substance, identified the purposes of Division 1A as being to encourage early offers to plead guilty and to avoid unfairness. The alleged unfairness on which Mr McLachlan relied in support of his submission that a discount of 25% ought to have been applied cannot be denied in that, had the Crown prior to committal accepted the applicant’s offer to plead guilty to a single offence contrary to s 61I of the Crimes Act on the basis which was later agreed (that it was only the ejaculation to which the complainant did not consent), the applicant would have been entitled to a discount of 25%. It was open to Parliament to have made a different legislative choice and base an offender’s entitlement to a discount of 25% on an offer to plead to a charged offence rather than the making and acceptance of a plea to that offence. For example, in the civil context, it is necessary only that an offer of compromise be made in particular terms for favourable costs consequences to ensue. Thus, a plaintiff who makes an offer of compromise which is bettered by the result is entitled to indemnity costs from the time of the offer: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.14. Similar consequences ensue for a defendant who betters an unaccepted offer: UCPR, r 42.15A. However, this was not the legislative choice made in Division 1A of Part 3 of the Act.

43. The purpose of the insertion of Division 1A was largely to remove judicial discretion as to the amount of the discount and to reinforce certainty based on the timing of the entry of a guilty plea, as is evident from the extracts from the Second Reading Speech set out above. It can be inferred from the text of the Act that the legislative intention was that those offenders who plead to an offence with which they have been charged in the Local Court will only be entitled to a 25% discount if the plea is actually entered in the Local Court. A plea to such an offence which is entered in the District Court will not entitle the offender to the maximum discount of 25% because Parliament can be taken to have regarded its utilitarian value as having been diminished by the delay.

44. When Parliament has made a clear legislative choice, it is not for a court to attempt to ameliorate the consequences of that choice by reading words into a statute to alter its plain meaning. This Court is obliged to give the statutory words their full force and effect. In the present case, the sentencing judge was correct to conclude that the applicant was entitled to a discount of 10% and not entitled to a discount of 25%.

45. Leave ought to be granted as the Court heard full argument on the effect of the statutory provisions.

Proposed orders

46. For the reasons given above, I propose the following orders:

47. Grant leave to appeal.

48. Dismiss the appeal.

49. HAMILL J: While delivering his judgment or remarks on sentence in the applicant’s case in the District Court, Judge Hanley SC paused to ask:

“He should be entitled to [a] 25% [sentencing discount] then, shouldn’t he?”

48. This proposition was contrary to the submissions of both lawyers appearing in the case, each of whom had submitted in writing the applicant was entitled only to a 10% sentencing discount due to the “inflexibility” of the regime in s 25D of the Crim**es (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”). Both the Prosecutor and the Solicitor Advocate appearing for the applicant on sentence confirmed that, despite the manifest unfairness of the outcome, the Judge was only entitled to reduce the appropriate sentence by 10%. Judge Hanley accepted the joint position of the parties. Accordingly, his Honour applied a “sentencing discount” of 10%.

49. The applicant sought leave to appeal against the sentence and made a valiant attempt to persuade the Court that the legislation should not be given its literal and natural meaning. Rather, it was submitted that the Court should construe the statute to achieve a fair and just result. This would involve interpreting the words “guilty plea … accepted by the Magistrate in committal proceedings” to mean something like “offered to plead guilty in the Local Court”. Asked whether he was inviting the Court to “stretch” the words of the statute, counsel replied frankly, “Yes please.”

50. I agree with the presiding Judge that the applicant’s submissions cannot be accepted. I agree for the most part with her Honour’s reasons for that conclusion. I am grateful to her Honour for setting out thoroughly the relevant statutory provisions and the factual circumstances and chronology of the present case. The plain and literal words of ss 25D and 25E of the CSP Act do not allow for a sentencing discount of 25% in the current circumstances unless the offender actually enters a plea of guilty in the Local Court and the Magistrate “accepts” that plea: cf Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 at [43]-[50] and Green v R [2022] NSWCCA 230 at [23].

51. As the reasons of Adamson JA demonstrate, the applicant offered to plead guilty in the Local Court to the exact same offence on precisely the same factual basis as was accepted by the prosecuting authority when the matter was before the District Court. However, as recorded in the “Case Conference Certificate”, the Prosecutor in the Local Court declined to accept the plea on that basis. Less than a year later, a different Prosecutor accepted the plea on precisely the basis proposed by the applicant in the Local Court. In those circumstances, the puzzlement behind Judge Hanley’s question set out in the opening paragraph of these reasons is not surprising.

52. The result is unjust and is reminiscent of the observations of Hidden J in R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 at [19]-[22]. Those comments were made in different factual circumstances and under a different, more flexible, statutory regime:

“19 …The applicant had offered to plead guilty to a lesser charge which could fairly be justified on the available evidence and which, in the event, the jury found to be the appropriate measure of his culpability. The Crown chose not to accept that offer, a matter which was beyond the applicant’s control. If the offer had been accepted, the same result would have been achieved without the necessity of a trial.

20 It is not to the point that, that offer having been rejected, the applicant chose not to plead guilty to manslaughter in the presence of the jury and raised an issue at the trial which could have led to his outright acquittal. (As it happens, self-defence could now give rise to the alternative verdict of guilty of manslaughter because of subsequent amendments to the Crimes Act: see Div 3 of Pt 11 of the Act and, in particular, s 421.) A plea of guilty at that stage would not have been accepted by the Crown and the trial would have proceeded in any event.

21 …If the submission of the Crown prosecutor in this Court were upheld, the measure of leniency afforded to an offender such as the applicant, prepared to plead guilty to a lesser charge fairly available on the evidence, would depend upon the Crown’s attitude. This would be unacceptable.”

53. Unlike the legislative landscape that prevailed when R v Cardoso was decided in 2003, the provision in s 25D of the CSP Act means that it is “to the point” that the applicant did not formally enter a plea of guilty in the Local Court. Nevertheless, the observations of Hidden J continue to resonate. The measure of leniency afforded to Mr Rokovada is determined by the attitude taken by the Prosecutor at the case conference in the Local Court.

54. This Court has dealt with other instances of injustice, or potential unfairness, resulting from the prescriptive and inflexible provision with which we are again dealing: see, for example, Black v R (supra), Green v R (supra), Camilleri v R [2023] NSWCCA 106; (2023) 308 A Crim R 52 and Ke v R [2021] NSWCCA 177*.* See also the comments concerning the process and the potential problems arising from the prescriptive nature of the regime in Carly Anne Coles v Director of Public Prosecutions [2022] NSWSC 960 (Yehia J) at [26]-[27], Abbas Hijazi v Director of Public Prosecutions [2022] NSWSC 1218 (Button J) at [15]-[18], R v Honeysett (No 2) (Sentence) [2023] NSWSC 103 at [33]-[34] (Hamill J), T**uxford v Director of Public Prosecutions [2023] NSWSC 1300 (Weinstein J) at [13]-[17], R v Rifai [2022] NSWDC 74 at [25]-[32] (Yehia SC DCJ, as her Honour then was) and Borri v R [2023] NSWCCA 166 at [35].

55. In Green v R, the applicant received a 5% sentencing discount because his lawyers failed to act on his clear instructions with the result that his decision to plead guilty was not notified until a few days after the statutory cut off point prescribed by ss 25C and 25D. He should have been entitled to a 10% sentencing discount but was not. The Court intervened on a different basis and the applicant was re-sentenced. However, Mr Green did not receive the 10% reduction in sentence to which he would have been entitled had his legal representatives acted on his instructions in a timely way.

56. In Ke v R, an offer to plead guilty made by the offender was not recorded in the case conference certificate (or “negotiations document”). The Court overcame the practical injustice that would have been occasioned by taking a less than literal approach to the provision in s 25E(2)(a). As Bellew J put it:

“339 In all of these circumstances, I take the view that for the purposes of s 25E(2)(a), the phrase ‘an offer recorded in a negotiations document’ as it appears in s 25E(2) should be construed as meaning ‘an offer which was recorded or which was required to be recorded in a negotiations document’. I have reached that view for a number of reasons.

340 Firstly, such an interpretation avoids what would otherwise be a plainly unjust outcome being visited upon the applicant.

341 Secondly, it is an interpretation which is consistent with the intention underlying s 75(1)(b) that offers be recorded.

342 Thirdly, it is consistent with principles of statutory interpretation, including that:

‘(i) if one construction of a statutory provision will do manifest injustice, and the other will avoid it, the latter should be adopted: Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Limited (1975) 132 CLR 336 at 350 per Gibbs J (as his Honour then was); [1975] HCA 28; and

(ii) a construction of a statute which interferes with the legal rights of a subject to a lesser extent and produces the less hardship is to be preferred to another, which has the opposite effect: Federal Commissioner of Taxation v Smorgon (1977) 16 ALR 721 at 729 per Stephen J; State of Victoria v R [2014] VSCA 311 at [61] per the Court (Nettle JA (as his Honour then was), Osborn and Whelan JJA)’.”

57. Unsurprisingly, the applicant in the present case placed substantial reliance on this passage. However, for the reasons provided by Adamson JA, there is no legitimate way that the Court can construe the words “guilty plea” in s 25D as meaning “offer to enter a guilty plea” or some similar phrase.

58. The so called “early appropriate guilty plea” process places significant burdens on legal practitioners on both sides. The mandatory case conference held in the Local Court is a critical step in the process towards committal for trial and/or sentence. Mr McLachlan was correct to point out the practical difficulties in an accused person in the position of the present applicant actually entering a plea of guilty when they know that plea will not be accepted by the prosecution in full satisfaction of the certified charges. As he put it in his refreshingly frank and robust way:

“One of my friend’s points is this. You could have entered a plea and taken your chances on a disputed facts hearing. There’s a thousand problems with that and essentially they’re practical. One is as a responsible competent practitioner you wouldn’t do that. You just wouldn’t do that day in day out”.

59. His point is well made. To enter the plea in the circumstances prevailing in this case would have deprived the applicant of any bargaining power when the matter came to the District Court, whether at a “Super Call-Over” or in the ordinary course of events leading up to a trial on the charges certified by the Prosecutor.

60. The process relies on the good faith of practitioners on both sides. It casts a great responsibility on prosecutors who receive offers from accused men and women to plead guilty in the Local Court to charges (or a charge) other than those formulated in the charge certificate (or in full satisfaction of several charges). The Prosecutor with carriage of the case in the Local Court must attend the mandatory case conference with an open mind, with full knowledge of their brief, an awareness of the strengths and weaknesses of the case and a realistic appreciation of the unpredictability of jury trials.

61. This case, and others to which I have made some passing reference, demonstrate that the inflexibility of the present regime can, and has, led to cases of actual or potential injustice. This decision may not fit comfortably with the pragmatic approach taken in some of the cases dealt with by single judges. Practitioners appearing for accused people must now provide full advice to their client, including that the failure to actually enter a plea in the Local Court will mean that they will not receive the full discount that would be available if they enter the guilty plea.

62. The provisions are in need of some reform, although that reform may only involve minor variations in the language of the provisions. If this was, as the presiding Judge describes it, a “legislative choice” it was a flawed one. It may be, as Mr McLachlan submitted, an example of “the altruism of life overflowing intellect, it may well be they [the members of Parliament] haven’t turned their mind frankly to this scenario.”

63. Despite the manifest unfairness of the outcome, I agree with the orders proposed by Adamson JA.

64. IERACE J: I agree with the orders proposed by Adamson JA and her Honour’s reasoning that the statute does not lend itself to the construction for which the applicant contends, and with the observations of Hamill J. It follows that, although the applicant was sentenced for the same offence, and on the same facts, to which he offered to plead guilty while the matter was still in the Local Court, and although that offer was recorded in the Case Conference Certificate, he did not receive the benefit of the discount for the utilitarian value of that early plea offer.

65. In my view, it is not apparent that this outcome was a consequence of a clear legislative choice; rather, this statutory scheme concerning committal and sentence proceedings has an apparent disconnect between those two stages.

66. At the committal stage, the parties are required to have a case conference which is wide-ranging in its scope, including a ventilation of any disputed facts for sentence. The Criminal Procedure Act 1986 (NSW) provides:

“70 Case conferences to be held

(1) ...

(2) The principal objective of the case conference is to determine whether there are any offences to which the accused person is willing to plead guilty.

(3) A case conference may also be used to achieve the following objectives—

(a) to facilitate the provision of additional material or other information which may be reasonably necessary to enable the accused person to determine whether or not to plead guilty to 1 or more offences,

(b) to facilitate the resolution of other issues relating to the proceedings against the accused person, including identifying key issues for the trial of the accused person and any agreed or disputed facts.

…”

67. Section 75(1) of the Criminal Procedure Act obliges the parties to certify the results of the case conference as to certain matters, including the following:

“75 Contents of case conference certificate

(1) The case conference certificate is to be in the form prescribed by the regulations and is to certify as to the following matters—

(a) …

(b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences,

(c) any offers by the prosecution to the accused person to accept guilty pleas to an offence specified in the charge certificate or to different offences,

(d) whether the accused person or prosecution has accepted or rejected any such offers,

…

(g) if an offer made to or by the accused person to plead guilty to an offence has been accepted—details of the agreed facts on the basis of which the accused person is pleading guilty and details of the facts (if any) in dispute,

…”

68. The purpose of the Case Conference Certificate is to inform the sentencing court of offers made by the parties, in particular by the accused, while the matter was in the Local Court, if those offers are relevant to the discount regime which is specified in the Crimes (Sentencing Procedure) Act 1999 (NSW). However, if the plea of guilty is not entered while the matter is in the Local Court, that scale of discounts provides for the maximum discount to apply only to “new count offences” and “different offences”; there is no discount for offences for which the accused had been charged before the case conference and to which they had offered to plead guilty. What then, one might ask, is the purpose of the parties being obliged to record such offers in the Case Conference Certificate in circumstance such as those that applied in the applicant’s situation, if not to establish whether a subsequent plea of guilty accords with the earlier offer?

69. The accused’s contingent offer was made in accordance with the objectives of the statutory scheme; that is, to identify and attempt to resolve the issues in dispute at an early stage of the proceedings and, in so doing, facilitate an efficient operation of the criminal court process. In my view, there is merit in reviewing the statutory scheme’s operation to ensure its objectives are being met, at least in this respect.

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